New Analysis: Outside Spending Surges in Important State Judicial Races as Election Day Nears

October 18, 2016

Special interest groups, many of which do not disclose their donors, have invested heavily in state supreme court races this election cycle, including pumping more than $1.2 million in outside spending into six states over the past two weeks, according to an analysis by the Brennan Center for Justice.

A corporate-funded group dedicated to electing Republicans in down-ballot races, along with PACs funded by energy companies, business interests, and trial lawyers, are among the major spenders. Many of these interests are frequent litigants in state courts, raising the specter of judges hearing cases involving major campaign supporters — and concerns that campaign cash could affect decisions in the courtroom. Other interests — and potential conflicts — remain obscured, as weak disclosure laws, coupled with the impact of Citizens United and related campaign finance rulings, make it easy for groups to spend in secret. Ads that have aired to date suggest that most of these outside groups will focus on criminal justice issues, including attacking judges’ decisions as “soft on crime.”

With three weeks to go to Election Day, estimated television spending for the entire 2015-16 election cycle has already surpassed $25.6 million, $11.3 million of which has come from outside groups. Recent experience suggests television spending, and particularly spending by outside groups, will rise substantially in the final weeks before Election Day. The Brennan Center will continue to monitor and analyze judicial election trends this fall, posting regular updates on its state supreme court elections page.

“The rising tide of unaccountable, secret money in judicial elections raises serious concerns about the integrity of our courts,” said Alicia Bannon, Senior Counsel in the Democracy Program at the Brennan Center for Justice. “The political pressure and potential conflicts of interest that come with it are a threat to basic fairness and to the judicial independence that is so vital to a functioning democracy.”

Fall Spending Highlights

Of the 38 states that hold elections for high court judges, 27 have races this fall. To date, the Brennan Center has documented nearly $3.5 million in television and radio spending for the fall general elections in ten states (Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, New Mexico, North Carolina, Ohio, and Washington). Ohio’s election for two contested supreme court seats leads the pack, with more than $1.4 million in spending by candidates and an outside group.

Since October 4, ten outside groups have spent a combined $1.2 million in six states, Ohio, Mississippi, Louisiana, Michigan, Montana, and Kansas, according to an analysis of state disclosures and television and radio contracts filed with the FCC. The Republican State Leadership Committee (RSLC), a group dedicated to electing republicans in down-ballot races, is the single largest outside spender so far this fall, having spent an estimated $595,500 in Ohio. The RSLC also contributed an additional $50,000 to another outside group in Montana, and donated $43,000 in-kind for polling and research. To date, the RSLC has spent nearly $3.9 million during the 2015-16 cycle, including in off-cycle races in Pennsylvania, Arkansas, West Virginia, and Wisconsin, a record for judicial election spending by the organization.

Other notable spending trends include:

Business Interests, Trial Lawyers, and Unions Remain Key Players: Business interests, plaintiffs’ lawyers, and unions have historically been the most significant spenders in judicial races, and disclosures this fall suggest this trend will continue in many states, including Montana, Louisiana, and Mississippi. In Montana, the two outside groups weighing in on the supreme court race, StopSetEmFreeSandefur.com and Montanans for Liberty and Justice, are funded largely by business interests and plaintiffs’ trial lawyers, respectively. In Mississippi, unions and trial lawyers have lined up in support of incumbent Justice Jim Kitchens, while his challenger, Court of Appeals Judge Kenny Griffis, has received contributions from medical, insurance, and corporate defense lawyers and business interests, and benefitted from outside spending by a PAC supported by the Mississippi Manufacturers Association and Mississippi Realtors, among others. Likewise, in Louisiana, where a race between court of appeals judge Jimmy Genovese and district court judge Marilyn Castle has been described as a contest between plaintiffs’ lawyers and big business, Castle has received contributions from PACs associated with oil and gas interests.

Charter School Funding Emerges as Campaign Issue: Fights over charter schools and education funding have bled into supreme court races in Washington and Louisiana this year. In Louisiana, a new PAC, Citizens for Judicial Excellence, has spent $78,255 on television ad buys for the general election. The group is principally funded by local businessman Lane Grigsby, a charter school supporter who has previously spent money on school board races and contributed to a pro-charter school group, Stand for Children. A lawsuit challenging public funding of charter schools in Louisiana is currently working its way through the court system, suggesting one possible reason for Grigsby’s interest. Likewise, in Washington, the supreme court primary included $130,000 in outside spending from Stand for Children WA PAC, which is funded by charter school supporters. In 2015, the Washington Supreme Court ruled that charter schools could not receive public funds, and the legislature recently passed a new charter school law.

Secret Spenders Are Aided by Weak Disclosure Laws: Weak disclosure laws can make it difficult or impossible to determine the underlying interests behind major spenders — and can hide potential conflicts of interest in cases involving judges standing for election. Of the ten outside groups that have put money into state supreme court elections so far this fall, only one has donors that are all clearly identifiable. The remaining nine groups include so-called social welfare organizations that do not disclose their donors, as well as PACs that list social welfare organizations or other PACs as contributors.

Fall Television Trends: Criminal Justice Dominates Airwaves

Of the nine states in which television advertisements have already aired this fall, five states have seen at least one criminal justice-themed ad, including lurid attack ads detailing robberies, murder, and even dismemberment. Many of these ads come from groups that are funded by business interests and do not generally focus on criminal justice issues. There is growing evidence that this attention towards criminal justice issues in judicial campaigns affects how judges rule in criminal cases

Some of the notable ads that have aired this fall include:

In Kansas, Kansans for Justice has begun running an ad discussing a case in which the Kansas Supreme Court vacated the death sentences of two convicted murderers, Jonathan and Reginald Carr, and sent their cases back to the lower court for further hearings and a new sentencing. The U.S. Supreme Court subsequently reversed the state court’s decision. The ad features the families of the victims, and states that “The Kansas Supreme Court is out of control.” Kansans for Fair Courts, which supports the justices’ retention, has also aired an ad, highlighting that the justices “upheld the death penalty and kept us safe.” Neither organization discloses its donors.

In Montana, a group called StopSetEmFreeSandefur.com put out an ad accusing Dirk Sandefur, a district court judge, of refusing “to give prison time to two child pornographers...[giving] a mere seven year sentence to a man guilty of repeatedly raping a ten year old girl...and [giving] no prison time to a man convicted of sexually assaulting a toddler [while] holding a gun to the child’s head.” The ads fail to reference that each of these sentences reflected plea bargains. The group is funded by the Republican State Leadership Committee, which receives most of its support from business interests.

In Mississippi, the Improve MS PAC sponsored an ad claiming that incumbent justice Jim Kitchens is “ignoring victims and hurting families” and that he has a “pattern of letting victims down.” The group is largely funded by the Mississippi Manufacturers Association, Mississippi Realtors, and other PACs.

In Ohio, the Republican State Leadership Committee ran an ad praising candidate Pat Fischer for “affirm[ing] the life sentence of a man who entrapped victims he robbed and murdered” and for affirming “the conviction of a murderer who dismembered his wife, leaving pieces all around town.” They said “his courage will keep criminals in jail and off our streets.”

State Spending Summaries:

Comprehensive data on television spending in state supreme court races is available on the Brennan Center’s state supreme court elections page. To date, the following states have seen the most activity in state judicial races this fall:

Ohio: Candidates and the Republican State Leadership Committee have collectively spent more than $1.4 million on radio and television ads in Ohio this fall — almost twice as much spending as in any other state. Pat DeWine, who will face off against Cynthia Rice in one of two races for an open seat, spent almost $644,000 in ad bookings. Pat Fischer, who is running for the other open seat against John O’Donnell, has booked $123,370 in television ads and an additional $47,251 in radio ads. The RSLC has spent $595,500 on ad bookings in support of Fischer.

Kansas: In Kansas, outside groups began booking advertisements last Friday in a heated retention election that has already drawn statewide attention, and which has the potential to shift the ideological composition of the state supreme court. The state Republican Party has called for the ouster of four of the five justices standing for retention, while four former governors (Republicans and Democrats) are campaigning in support of the retention of all five justices. Kansans for Justice, which has been a vocal critic of the state supreme court for its 2013 decision ordering a new sentencing hearing for the Carr brothers, has spent $72,784 in television ad bookings. Kansans for Fair Courts, which is advocating for the retention of all five justices, has spent $50,955.

Montana: A contest between attorney Kristen Juras and state district court judge Dirk Sandefur for an open seat on the Montana Supreme Court has attracted the attention of the RSLC, which has contributed $50,000 to the organization StopSetEmFreeSandefur.com, along with donating $43,000 in-kind for polling and research. The group has launched a website and video criticizing Sandefur for his criminal justice record. On the other side, Montanans for Liberty and Justice, whose only contributor is the spending arm of the Montana Trial Lawyers Association, has spent $26,925 in ads criticizing Juras for her corporate backing and decisions on environmental issues.

Louisiana: In Louisiana, state court of appeals judge Jimmy Genovese has received over $1 million in contributions in his campaign for an open supreme court seat, while his opponent, state district court judge Marilyn Castle, has received over $500,000. Both sides are also attracting major outside spending, with the Restore Our Coast PAC booking over $200,000 in ads in support of Genovese, while two other groups, the Center for Individual Freedom and Citizens for Judicial Excellence, have spent more than $100,000 in support of Castle.

Mississippi: In Mississippi, a contest between incumbent justice Jim Kitchens and court of appeals judge Kenny Griffis has attracted nearly $50,000 in television ads by the Improve Mississippi PAC, which is largely funded by the Mississippi Manufacturers Association, Mississippi Realtors, and other PACs, attacking Kitchens for “failing victims.” Griffis has also booked $62,994.in television ads, while Kitchens has booked $121,312.

Methodology

Data on TV and radio ad buys for the November general election is based on an analysis of contracts posted on the FCC’s website. Spending totals are current as of 6am ET on October 18, 2016. Television spending data for earlier races in 2015-16 cycle came from estimates from Kantar Media/CMAG, with the exception of West Virginia, where we relied on state disclosures. Information about donors was taken from online state disclosure databases and news sources, as reflected in the hyperlinks.